In Roddis v Sheffield Hallam University (UKEAT/0299/17), the Employment Appeal Tribunal (the EAT) had to decide whether Mr Roddis, who was on a zero hours contract, could compare himself to a full-time colleague and bring a claim for less favourable treatment under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
Mr Roddis was employed by Sheffield Hallam University (the University) as an associate lecturer. He brought a claim for less favourable treatment under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the Regulations) and the EAT had to decide whether he could compare himself to a full-time permanent colleague, who was also a lecturer.
Employment tribunal decision
The employment tribunal (the ET) dismissed the claim at a preliminary hearing. It found that Mr Roddis was employed on a zero hours contract. It considered that the only comparator put forward by Mr Roddis (a Mr Mark Leader) was not a comparable full-time worker, as Mr Leader was not under the same type of contract as Mr Roddis. Mr Leader was employed as an academic lecturer on a full-time contract.
The basis for this decision was the ET's application of Regulation 2(4) of the Regulations, as follows:
"A full-time worker is a comparable full-time worker in relation to a part-time worker if….. (a) both workers are: (i) employed by the same employer under the same type of contract".
The ET did not believe that Mr Leader and Mr Roddis were employed under the same type of contract and therefore ended its analysis there. Mr Roddis appealed.
Employment Appeal Tribunal decision
The EAT upheld Mr Roddis' appeal and found that the ET had erred in concluding that the type of contract that Mr Leader was engaged under was different from Mr Roddis' contract.
It referred to Regulation 2(3) of the Regulations, which sets out categories of different types of contract, and confirmed that these are defined broadly to allow for a wide variety of different terms and conditions to enable a comparison to be made between full and part-time workers. It held that a zero hours contract in itself was not sufficient to constitute a different form of contract for Regulation 2, as otherwise an employee on a zero hours contract would never be able to compare himself to a full-time worker, which would be self-defeating. Therefore where an employee and his comparator are both employed under contracts of employment that answer to the same description under Regulation 2(3), then they are to be regarded as employed under the same type of contract for the purposes of Regulation 2(4).
The case was remitted back to the ET for it to decide the remaining issues in the case.
This case reflects and follows the decision in Matthews v Kent and Medway Towns Fire Authority ( ICR 84), where the House of Lords confirmed that the threshold requiring a comparison of full and part-time workers was deliberately not set too high and that focus should be given to the similarities in the roles, and not the differences.
The decision here may be a surprise to some given the European Court of Justice (the ECJ) decision in Wippel v Peek & Cloppenburg GmBH &Co KG ( IRLR 211). In Wippel the ECJ held that a zero hours contract worker could not compare herself with her full-time colleagues.
However, Matthews distinguished Wippel and the EAT held in this case that there were also clear distinguishing factors. In Wippel, the claimant was seeking to be paid a full-time salary irrespective of the hours she worked, a claim that was described by the House of Lords in Matthews as "clearly outrageous".
Employers should therefore ensure that they do not treat zero hours contract workers less favourably than full-time employees where their roles are broadly similar, unless this treatment can be objectively justified.
The Regulations also apply to workers where a worker and his or her comparator are both employed under contracts that answer to broadly the same description. This may give employers further cause for concern following the recent EAT decision in Addison Lee Ltd v Gascoigne (UKEAT/0289/17) where the EAT decided that a cycle courier was a worker and not self-employed, as Addison Lee had claimed. It would appear that a worker in this case could then compare himself to a full-time worker where they do broadly similar work, and may be entitled to the same treatment (for example in relation to benefits and sick pay).